ORDERS:
ORDER DENYING MOTION TO RECONSIDER AND ALTER OR AMEND JUDGMENT
This matter comes before me upon Petitioner's "Motion to Reconsider and Alter or Amend
Judgment." Petitioner requests this tribunal to reconsider the Final Order of the Honorable Stephen
P. Bates, dated January 26, 1999, in the above-captioned case, or, in the alternative, to amend certain
Findings of Fact and Conclusions of Law in the Order.
MOTION TO RECONSIDER
Standard of review
The grounds for which a motion for reconsideration can be granted under ALJD Rule 29(D)
and Rule 60(B), SCRCP are as follows:
1. mistake, inadvertence, surprise, or excusable neglect;
2. newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
3. fraud, misrepresentation, or other misconduct of an adverse party;
4. the judgment is void; or
5. the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.
Discussion
Upon review of the Petitioner's Motion to Reconsider, I find that Petitioner has failed to
show that it is entitled to relief under ALJD Rule 29(D). In paragraph one of the Motion, Petitioner
alleges that this tribunal lacked jurisdiction to order Petitioner to connect its sewer system to the
system of the Georgetown County Water & Sewer District ("District"), and therefore "the judgment
is void." This allegation has no merit.
In paragraph 2(A) of the Motion, Petitioner alleges that "[t]hrough DHEC's mistakes,
inadvertence, or excusable neglect, DHEC failed to meet their burden by failing to submit any
supporting documentation as to the violations which precluded this Court from properly analyzing
the fines." This complaint does not fall within the contemplation of Rule 60(B)(1). In any event,
I find that this contention has no merit.
In paragraph 2(B) of the Motion, Petitioner alleges that the record should be reopened due
to either (1) Petitioner's own "mistake, inadvertence, surprise, or excusable neglect" or (2) newly
discovered evidence. I find these allegations have no merit. Petitioner alleges that after the final
hearing in this matter, it discovered certain documents in its own files which had not been presented
at the hearing. Petitioner asserts these documents are relevant to its ability to upgrade its facilities
and the alleged resulting effect on NPDES violations. I find that Petitioner has failed to show that
its failure to present these documents at the hearing was excusable or that it used due diligence to
locate these documents prior to the final hearing. I further find that Petitioner was not surprised by
the testimony of DHEC's witnesses regarding Petitioner's ability to upgrade. Counsel for Petitioner
raised this issue in his opening argument. (Transcript, page 19, lines 3 through 6).
MOTION TO ALTER OR AMEND
Paragraphs 2(C) through 2(D) of Petitioner's Motion request amendments to the Findings
of Fact and Conclusions of Law in the January 26, 1999 Order. Petitioner's Motion to Alter or
Amend is without merit.
In paragraphs 2(C)(i) and (ii) of the Motion, Petitioner alleges that Findings of Fact # 16 and
17 in the January 26, 1999 Order were not supported by any evidence in the record. This allegation
has no merit. Both findings were supported by witness testimony.
In paragraph 2(C)(iii) of the Motion, Petitioner requests that Finding of Fact # 25 be amended
to reflect Petitioner's total costs for interconnection with the District. I find that such an amendment
is unnecessary in these proceedings. I find, however, that there were certain omissions from the
finding that may be corrected pursuant to ALJD Rule 51. Therefore, Finding of Fact # 25 is
corrected to read as follows:
25. The District's impact fee for connection for bulk
service to CWS as of January 14, 1994 was
approximately $180,400. As of July 1, 1998, this fee
was approximately $213,200.
Additionally, page 7, paragraph 1, sentence 2 of the January 26, 1999 Order is corrected
pursuant to ALJD Rule 51 as follows:
CWS will most likely incur initial expenses of at least $190,000 to
either upgrade and sell its system or obtain bulk service from the
District.
In paragraph 2(C)(iv) of the Motion, Petitioner requests this tribunal to remove the word
"problem" from Finding of Fact # 30. I find Petitioner's supporting argument for this requested
amendment to be without merit. In paragraphs 2(C)(v), (vi) and (vii), Petitioner requests this
tribunal to add certain Findings of Fact and Conclusions of Law to the January 26, 1999 Order. I
find these requested findings to be either irrelevant to this enforcement case or already addressed in
the January 26, 1999 Order. Should Petitioner desire a court finding that its compelled
interconnection with the District is a compensable taking, it should file an appropriate action in
circuit court. Such a claim is not within the scope of these enforcement proceedings.
Finally, in paragraph 2(D) of the Motion, Petitioner requests this tribunal to reweigh the
evidence on the effect of its ability to upgrade on its NPDES violations, or, in the alternative, to
reopen the record to receive its newly discovered evidence on this issue. I find both of these requests
to be without merit.
ORDER
IT IS THEREFORE ORDERED that Petitioner's Motion to Reconsider and Motion to
Alter or Amend Judgment are denied.
IT IS FURTHER ORDERED that the following portions of the January 26, 1999 Order
are corrected pursuant to ALJD Rule 51 as follows:
Finding of Fact # 25:
25. The District's impact fee for connection for bulk
service to CWS as of January 14, 1994 was
approximately $180,400. As of July 1, 1998, this fee
was approximately $213,200.
Page 7, paragraph 1, sentence 2:
CWS will most likely incur initial expenses of at least $190,000 to
either upgrade and sell its system or obtain bulk service from the
District.
AND IT IS SO ORDERED.
_________________________________
MARVIN F. KITTRELL
Chief Judge
February 11, 1999
Columbia, South Carolina |
